HKSAR v. LIU SUZHEN

HCMA624/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.624 OF 2006

(ON APPEAL FROM STCC 4943 OF 2006)

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J U D G M E N T

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1. The appellant appeals against the sentences totalling 15 months’ imprisonment imposed upon her by Mr Mierczak on 1 June this year following her pleas of guilty to four charges.  The charges are as follows :

Charge 2 :	using a forged identity card contrary to section 7A(1) of the Registration of Persons Ordinance, Cap.177;
Charge 6 :	breaching her conditions of stay which permitted her to remain in Hong Kong for seven days from 11 February 2001 contrary to section 41 of the Immigration Ordinance, Cap.115;
Charge 7 :	breaching her conditions of stay by taking up employment, contrary to section 41 of the Immigration Ordinance, Cap.115; and
Charge 8 :	making a false representation to an Immigration Assistant lawfully acting under or in execution of Part II of the Immigration Ordinance contrary to section 42(1)(a) of the Immigration Ordinance, Cap.115.

2. The magistrate imposed sentences as follows :

Charge 2	—	15 months’ imprisonment;
Charge 6	—	4 months’ imprisonment;
Charge 7	—	4 months’ imprisonment; and
Charge 8	—	6 months’ imprisonment.

All sentences were ordered to run concurrently. 

3. Upon the facts admitted by the appellant, she had entered Hong Kong on 11 February 2001 and had been permitted to stay for seven days providing that she did not take up employment.  In breach of her conditions of stay, she overstayed for over five years.  She was found working in a kitchen of the Helen Chiang Kitchen Company Limited on 15 May this year.  She had taken up that employment in the previous November and had secured the employment by producing a forged identity card bearing her photograph.  When questioned by an Immigration Officer, she claimed that she was an illegal immigrant from China and falsely gave her sister's name instead of her own. 

4. The appellant appeals against the sentences which she asks to be reduced.  She has told this court that there is nobody to look after her two children aged 12 and 15 as her mother-in-law, who was previously looking after them, has terminal cancer.  The cancer was diagnosed in October 2005.  She claims that her husband has disappeared.  She has no parents or brothers and sisters.  There is no one else to look after the children. 

5. There is no medical evidence to support what the appellant now says about her mother-in-law.  If she had known that her mother-in-law was suffering from cancer since October 2005, it is surprising, if that was the case, that that was not mentioned to the magistrate when her family circumstances were outlined to him.  Although the appellant says she has no brothers and sisters, she admitted the facts of the case which included the fact that she had given to the Immigration Officer the name of her sister as her own. 

6. Although I have no doubt the appellant does wish to return to her children, she has not looked after them since she came to Hong Kong in 2001.  She did not return to the Mainland in October 2005 after learning that her mother-in-law had cancer.

7. None of the sentences imposed by the magistrate was excessive, in particular, the longest of those sentences – 15 months’ imprisonment for using a forged identity card when the card had been used to assist her to work illegally - was the normal sentence for that offence upon a plea of guilty.  HKSAR v. Lee Chang Li [2004] MA 935.  The overall sentence passed by the magistrate of 15 months' imprisonment cannot be criticised as being too severe.  If anything, it was lenient, bearing in mind the length of the appellant’s overstay. 

8. There is nothing in what the appellant has told me today that persuades me that the sentences should be reduced and therefore I dismiss the appeals against sentence.